H5 



REPORT 



THE COMMITTEE OF THE OVERSEERS 






HARVARD COLLEGE, 



APPOINTED TO VISIT 



THE LAW SCHOOL 



IN 1849. 



BOSTON: 

PRINTED BY JOHN WILSON, SCHOOL STREET. 

1850. 



REPORT 



THE COMMITTEE OF THE OVERSEERS 



HARVARD COLLEGE, 



APPOINTED TO VISIT 



THE LAW SCHOOL 

/ W IN 1819. -O' '^ 



V .^' .^/ 









BOSTON: 

PRINTED BY JOHN WILSON, SCHOOL STREET. 
1850. 



V 






IN BOAUD OF OVERSEERS, 

February 1, 1849. 

Voted, That Hon. Peleo Sprague, Hon. Simon Greenleaf, Charles 
Sumner, Esq. Hon. Albert H. Nelson, and Peleg W. Chandler, Esq. be a 
Committee to visit the Law School during the ensuing year. [Hon. William 
Kent was afterwards substituted for Mr. Greenleaf, who declined.] 



IN BOARD or OVERSEERS, 

■ February 7, 1850. 

Ordered, That the Report of the Committee appointed to visit the Law 
School be printed. 

Attest, 

ALEXANDER YOUNG, 

Secretary. 



REPORT 



The Committee appointed by the Overseers of Harvard 
University to visit the Law School, performed that service, 
Nov. 7, 1849. Among their number present on the occasion 
was Hon. William Kent, of New York, who gratified his 
associates very much by coming a long distance to join in 
this duty. 

The attention of the Committee was first directed to the 
actual condition of the School, and its advantages as a 
place of legal education. Here there was occasion for lively 
satisfaction. The number of students was one hundred, 
assembled from all parts of the Union, and constituting a 
representation of the whole country. Their attendance upon 
the lectures and other exercises, though entirely voluntary, 
had been full and regular ; while their industry, good con- 
duct, and intelligent reception of instruction, had been a 
source of peculiar pleasure to their professors. 

Lectures had been given, during the current term, by 
Professor Parker, upon Equity Pleadings, Bailments, and 
Practice ; by Professor Parsons, upon Blackstone's Com- 
mentaries, the Admiralty Jurisdiction, Shipping, Bills and 
Notes ; and by Professor Allen, upon Real Law and Do- 
mestic Relations. In treating most of these branches, the 
professors adopted certain text-books, of acknowledged 
authority, — to which the attention of the students was 
especially directed, — as the basis of their remarks. They 



4 



also examined the students in these books, and in the lead- 
ing cases illustrating the subject. 

This system of instruction, which has been continued in 
the School since its earhest foundation with substantial uni- 
formity, has shown itself to be well adapted to the end in 
view. It is essential that the student should be directed to 
certain text-books. These he must study carefully, devoted- 
ly ; nor can he properly omit to go behind these, and verify 
them by the decided cases. No day should pass without its 
fulfilled task in these labors. In this way he will be prepared 
for the examinations, and will be enabled to appreciate the 
explanations and illustrations of the lecture-room, throAving 
light upon the text, and showing its application to practical 
cases. The labors of the student will qualify him to com- 
prehend the labors of the instructor. Still further, examina- 
tions in the text-books, accompanied by explanations and 
illustrations, help to interest the student in the subject, and to 
bring his mind directly in contact with the mind of his in- 
structor. 

These same purposes are also promoted by the favorite 
exercise of moot-courts, which are held twice a- week, by the 
different professors in succession. A case, involving some 
unsettled question of law, is argued by four students, who 
have been designated so long previously as to allow time for 
careful preparation ; and, at the close of the arguments, an 
opinion is given by the presiding professor, commenting 
upon the doctrines maintained on each side, and deciding 
between them. These occasions are found to enlist the best 
attention, not only of those immediately engaged in them, 
but of the listeners ; while some of the efforts which they call 
forth from the students are said to show distinguished re- 
search and ability. Here, on this mimic field, are trained 
those forensic powers which are destined to be the pride and 
ornament of the bar. 

We should not neglect to notice the advantages for study 
afforded by the extensive library of the Law School. This 
is separate from the Public Library of the University, and 
contains about fourteen thousand volumes. Here are found 



all the American Reports, and the Statutes of the United 
States, as well as those of all the States, a regular series of 
all the English Reports, including the Year-books, and also 
the English Statutes, as well as the principal treatises in 
American and English law ; also a large body of works 
in the Scotch, French, German, Dutch, Spanish, Italian, 
and other foreign law ; and an ample collection of the best 
editions of the Roman or Civil Law, with the works of the 
most celebrated commentators upon that ancient law. This 
library is one of the largest and most valuable, relating to 
law, to be found in the country. As an aid to study, it can- 
not be estimated too highly. Here the student may range 
at will through all the demesnes of jurisprudence. Here he 
may acquire a knowledge of the books of his profession, — 
learning their true character and value, — which will be of 
incalculable service to him in his future labors. Whoso 
knows how to use a library possesses the very keys of know- 
ledge. Next to knowing the law is knowing where the law 
is to be found. 

There is another advantage of a peculiar character, afforded 
by the Law School, in the opportunity of kindly and instruc- 
tive social relations among the students, and also between 
the students and their instructors. Young men, engaged in 
similar pursuits, are professors to each other. The daily 
conversation concerns their common studies, and contributes 
some new impulse. Mind meets mind, and each derives 
strength from the contact. But the instructor is also at hand. 
In the lecture-room, and also in private, he is ready to afford 
counsel and help. The students are not alone in their 
labors. They find an assistant at every step of their jour- 
ney, ready to conduct them through its devious and toilsome 
passes, and to remove the difficulties which throng the way. 
This twofold companionship of the students with each other, 
and of the students vvith their instructors, is full of beneficent 
influences, not only in the cordial intercourse which it begets, 
but in the positive knowledge which it diffuses, and in its 
stimulating effect upon the minds of all who enjoy it. 

In dweUing on the advantages of the Law School, as a 



seat of legal education, the Committee place side by side 
Avith the lectures and exercises of the professors, the profitable 
opportunities afforded by the library, and by the fellowship 
of persons engaged in the same pursuits ; all echoing to the 
heart of the pupil, as from the genius of the place, constant 
words of succor, encouragement, and hope. 

From the present prosperity of the School, the Committee 
have been led to look back to its early beginning, to observe 
its growth, and to commemorate with gratitude its bene- 
factors. 

It need hardly be added, that a Law School was not 
embraced by our forefathers in the original design of the 
College, and that it was engrafted upon the ancient stock at 
quite a late period. The College was first planted at a lime 
when the law was not treated, even in England, as a part of 
academic instruction. The first settlers of our country could 
not be expected to establish professorships unknown in the 
land from which they had parted; nor, indeed, in those early 
days, and for some time later, does there appear to have been 
occasion for instruction in the law. In fact, the law, as a 
science, as a profession, or as a practical instrument of gov- 
ernment, was scarcely observed. Lawyers were not known 
as a class, nor was their busmess respected. Mr. Lechford, 
of Clement's Inn, who had emigrated not long after the foun- 
dation of the College, — hoping to gain a livelihood as an 
attorney, — being cautioned at a quarter court " not to med- 
dle with controversies," returned again to England. But, 
as the Colony grew, it gradually laid hold of the common 
law, and, for some time before the Revolution, claimed this 
law as a birthright of the inhabitants. 

The history of the Library of the University exposes the 
poverty of the means afforded by it in those early days for 
the study of the law. In the Catalogue of the library, pub- 
lished in 1727, we find but seven volumes of the common 
law. These are Spelman's Glossary, Pulton's Collection of 
Statutes, Keble's Statutes, Coke's First and Second Insti- 
tutes, and a couple of odd volumes of the Year-books. 



These were the means afforded for the study of our law 
by the library which Cotton Mather described, some time 
before the publication of this catalogue, as the " best furnished 
that could be shown anywhere in all the American regions." 
Since books are the very instruments of learning, it must 
follow, if these were wanting at Harvard College, that the 
study of the law could make little advance. Happily all 
this is now changed. 

The first professorship of law in the University was estab- 
lished in 1815, upon a foundation partly supplied by an 
ancient devise of Isaac Royall, Esq. ; — a munificent gen- 
tleman of ample fortune, who, being connected by blood and 
marriage, as well as by political opinions, Avith the principal 
royalists of Massachusetts, forsook the country with them at the 
commencement of the Revolution, and died at Kensington in 
England, about the year 1781. Though an exile, he did not 
forget the land he had left. Thither " his heart untravelled 
fondly turned," before his death. By his will, which is 
recorded in the Probate Office in Boston, he devised to the 
town of Medford in Massachusetts, where he had resided, 
certain lands in Granby, for the support of schools. The 
residue of his estate in that toAvn, and certain other lands in 
the county of Worcester, he devised to the Overseers and 
Corporation of Harvard College, " to be appropriated to- 
wards the endowing a Professor of Laivs in the said College, 
or a Professor of Physic and Anatomy, whichever the said 
Overseers and Corporation shall judge to be best for the 
benefit of the said College." The capital, with its accumu- 
lation resulting from the property thus devised, is $7,943.63, 
yielding an annual income of about four hundred dollars. 
It is believed that the University and the lovers of the law 
are indebted to the late Hon. John Lowell, while a member 
of the Corporation of the University, for calling these funds — 
as yet unappropriated to either object of the devise — from 
their sleep in the treasury, by procuring the establishment of 
a professorship of law in 1815, which was ordered, for the 
present, to bear the name of Royall, in honor of him whose 
will was now first executed in this regard. The residue of 



the funds for its support have been hitherto supphed by the 
University, mainly from the fees paid by students of law. 
The Hon. Isaac Parker, late Chief Justice of this Common- 
wealth, was appointed the first professor. 

In 1817, the Hon. Asahel Stearns was placed upon an- 
other foundation, established by the University. The statutes 
of this professorship required him to open and keep a School 
in Cambridge, for the instruction of the graduates of the 
University, and of others prosecuting the study of the law ; 
and, in addition to prescribing to his pupils a course of 
study, to examine and confer with them upon the subjects 
of their studies, to read to them a course of lectures, and 
generally to act the part of a tutor, so as to improve their 
minds, and assist their acquisitions. From this time may 
be dated the establishment of the Law School of the Uni- 
versity. 

Chief Justice Parker never resided in Cambridge, but 
was in the habit, in the performance of his duties as profes- 
sor, of reading a course of lectures every summer to the 
students of the Law School, and to the senior class of under- 
graduates. These were of an elementary nature, adapted 
to the youthful minds of his audience, of which the larger 
part belonged to the undergraduates, and were characterized 
by that free and flowing style which so eminently marks the 
judicial opinions of this judge. They comprised a view of 
the Constitutions of the United States and of Massachusetts, 
with a particular notice of the early juridical history of New 
England, explaining the origin of its laws and institutions. 
Professor Stearns, who resided in Cambridge, was occupied 
more immediately with the duties of instruction in law. He 
was accustomed to hear recitations from the students of the 
School in the more important text-books, to preside in moot- 
courts, and to read lectures on various interesting titles of 
law. The valuable work on Real Actions, so well known 
by the lawyers of the country, was prepared by him in the 
discharge of his duties as professor, and read to his pupils in 
a course of lectures. The first edition was dedicated by the 
author " to the students of Harvard University, as a testinio- 



9 



nial of his earnest desire to aid them in the honorable and 
laborious study of American jurisprudence." 

The number who resorted to the Law School at this period 
was comparatively small. From 1817 to 1830, the largest 
class for any single year was eighteen, and the average 
annual number was not more than eight. The first impor- 
tant step, however, was taken. The law was admitted within 
the circle of University studies ; while, by the learning and 
reputation of its professors, the cause of legal education was 
commended, and the idea of a Law School was shown to be 
practicable. 

In 1829, Chief Justice Parker and Professor Stearns re- 
signed their places, and a new epoch in the history of 
the School began. The Hon. Nathan Dane, emulating the 
example of Viner in England, from the profits of his exten- 
sive Abridgment and Digest of American Law, established 
a new professorship, still called from his name ; to which, 
according to his request, the late Joseph Story, at that time 
a resident of Salem, and an Associate Justice of the Supreme 
Court, was appointed. In his communication to the Uni- 
versity, appropriating the funds for this endowment, the 
venerable founder marked out the duties of the new station 
as follows : "It shall be the duty of the professor to prepare 
and deliver, and to revise for publication, a course of lectures 
on the five following branches of law and equity, equally in 
force in all parts of our federal republic, — namely, the law 
of nature, the law of nations, commercial and maritime law, 
federal law, and federal equity, — in such wide extent as the 
same branches now are, and from time to time shall be, 
administered in the courts of the United States, but in such 
compressed form as the profession shall deem proper ; and 
so to prepare, deliver, and revise lectures thereon, as often 
as the said Corporation shall think proper." The funds 
originally given by Mr. Dane amounted to $10,000, to which 
were added $5,000 on his death, making the sum total of 
his donation, $15,000. Mr. Justice Story removed to Cam- 
bridge, and commenced his new career, as Dane Professor 
of Law, in August, 1829, with an inaugural discourse, in 



10 



which the honorable nature of legal studies, the arduous 
labors required in their pursuit, and the duties upon which 
he was about to enter, were reviewed with singular power 
and beauty. At the same time, John Hooker Ashmun, Esq. 
a lawyer of remarkable acuteness and maturity, who, though 
young, had shown already the capacity of a great jurist, was 
associated with him as Royall Professor of Law. 

The Law School, from the exertions of the new professors, 
received a fresh impulse. The number of students increased, 
and the fame of the institution was extended. Professor 
Story, though necessarily absent much in the discharge of 
his judicial labors, yet found time to take an active part in 
the duties of teaching. He presided in the moot-courts and 
lecture-rooms, and, by his earnest encouragements and pro- 
fuse instructions, not less than by his illustrious example, 
warmed the classes with ardor in their studies. He continued 
in this sphere, giving and receiving happiness from his laibors, 
for a period of sixteen years ; when, desirous as age ad- 
vanced to lay down some of his cares, he proposed to resign 
his seat on the bench, and dedicate the remainder of his days 
to his professorship. As he was about to make this change, 
he was arrested by death, Sept. 10, 1845. 

Professor Ashmun had already fallen, much regretted, by 
his side, in 1833, at the early age of thirty-three. Besides 
the moot-courts, the examinations in the text-books, and oral 
expositions of the law, this learned teacher had occasionally 
read written lectures. Among these was a valuable course 
on medical jurisprudence, equity, and the action of assump- 
sit. His place was supplied by an eminent jurist. Professor 
Greenleaf, who labored for a long period with rare success, 
beloved by a large circle of grateful pupils, and by his asso- 
ciates in instruction, till 1848, when he was compelled by ill 
health to resign his connection with the Law School. Among 
his distinguished labors, in the discharge of his duties as pro- 
fessor, is a work on the Law of Evidence, which is now a 
manual in the courts of our country, and one of the classics 
of the common law. 

Professor Greenleaf, on the death of Professor Story, was 



11 



made Dane Professor. Hon. William Kent, of New York, 
occujDied for a year the place of Royall Professor, when he 
felt constrained by circumstances to return to New York. 
Since then, Hon. Theophilus Parsons has been Dane Pro- 
fessor ; and Hon. Joel Parker, late Chief Justice of New 
Hampshire, Royall Professor. Hon. Franklin Dexter, for 
a brief period, has lectured on the Constitution of the United 
States, and the Law of Nations ; and the Hon. Luther S. 
CusHiNG, on Parliamentary Law and Criminal Law. Hon. 
Frederick H. Allen, late a Judge in Maine, as University 
Professor, without any permanent foundation, is at present 
co-operating with Professor Parsons and Professor Parker in 
the general duties of the School. 

In reviewing the history of the School, the Committee, 
while remembering with grateful regard all its instructors, 
pause with veneration before the long and important labors 
of Story. In the meridian of his fame as a judge, he became 
a practical teacher of jurisprudence, and lent to the Univer- 
sity the lustre of his name. The Dane Professorship, through 
him, has acquired a renown which places it on the same 
elevation with the Viuerian Professorship at Oxford, to which 
we are indebted for the Commentaries of Sir WiUiam Black- 
stone. These " twin stars " shine each in different hemi- 
spheres, but with rival glories. Nor is this the only parallel ; 
for Viner, like our Dane, endowed the professorship, which 
bears his name, from the profits of his immense Abridgment 
of the Law. In the performance of his duties. Professor 
Story prepared and published the most important series of 
juridical works which have appeared in the English lan- 
guage in our age, embracing a comprehensive treatise on 
the Constitution of the United States, a masterly exposition 
of that portion of international law known as the Conflict of 
Laws, and commentaries on Equity Jurisprudence, Equity 
Pleading, and various branches of Commercial Law. 

The character of his labors, and their influence upon the 
School, will appear from an interesting passage in his last 
will and testament, bearing date Jan. 2, 1842. After be- 



12 



qneathing to the University several valuable pictures, busts, 
and books, he proceeds as follows : " I ask the President and 
Fellows of Harvard College to accept them as memorials of 
my reverence and respect for that venerable institution at 
vi'hich I received ray education. I hope it may not be im- 
proper for me here to add, that I have devoted myself as 
Dane Professor for the last thirteen years to the labors and 
duties of instruction in the Law School, and have always 
performed equal duties and to an equal amount with my 
excellent colleagues, Mr. Professor Ashmun and Mr. Pro- 
fessor Greenleaf, in the Law School. When I came to 
Cambridge, and undertook the duties of my professorship, 
there had not been a single law-student there for the pre- 
ceding year. There was no law-library, but a few old and 
imperfect books being there. The students have since in- 
creased to a large number, and, for six years last past, have 
exceeded one hundred a year. The Law Library now con- 
tains about six thousand volumes, whose value cannot be 
deemed less than twenty-five thousand dollars. My own 
salary has constantly remained limited to one thousand 
dollars, — a little more than the interest of Mr. Dane's dona- 
tion. I have never asked or desired an increase thereof, as 
I was receiving a suitable salary as a Judge of the Supreme 
Court of the United States ; while my colleagues have very 
properly received a much larger sum, and of late years more 
than double my own. Under these circumstances, I cannot 
but feel that I have contributed towards the advancement of 
the Law School a sum out of my earnings, which, with my 
moderate means, will be thought to absolve me from making, 
what otherwise I certainly should do, a pecuniary legacy to 
Harvard College, for the general advancement of literature 
and learning therein." 

It appears from the books of the Treasurer, that the sums 
received from students in the Law School, during the sixteen 
years of his professorship, amounted to $105,000. Of this 
sum, only $47,200 were spent in salaries, and other current 
expenses of the School. The balance, amounting to $57,200, 
is represented by the following items, viz. : — 



13 



Books purchased for the Library and for students, including about 
$1,950 for binding, and deducting the amount received for 
books sold $29,000 

For the enlargement of the Hall, containing the library and lecture- 
rooms, in 1844-5 12,700 

The Fund remaining to the credit of the School in August, 1845 15,500 



$57,200 



Thus it appears that the Law School, at the (ime of Profes- 
sor Story's death, actually possessed, independent of the 
somewhat scanty donations of Mr. Royall and Mr. Dane, 
funds and other property, including a large library and a 
commodious edifice, amounting to upwards of fifly-sevcn 
thousand dollars, all of which had been earned during Pro- 
fessor Story's term of service. As he declined, during all 
this time, to receive a larger annual salary than $1000, and 
as his high character and the attraction of his name doubt- 
less contributed to swell the income of the School, it will be 
evident that a considerable portion of this large sum may 
justly be regarded as the fruit of his bountiful labors con- 
tributed to the University. 

The Committee, while calling attention in this way to the 
extent of the pecuniary benefaction which the Law School 
has received from Professor Story, have felt it their duty to 
urge upon the Government of the University the propriety 
of recognizing this in some suitable form. The name of 
Royall, attached to one of the professorships, keeps alive the 
memory of his early beneficence. The name of Dane, 
attached to the professorship on which Story taught, and 
sometimes to the edifice, containing the library and lecture- 
rooms, and also to the Law School itself, attests, with triple 
academic voice, a well-rewarded donation. But the contribu- 
tions of Royall and Dane combined — important as they have 
been, and justly worthy of honorable mention — do not equal 
what has been contributed by Story. At the present mo- 
ment. Story must be regarded as the largest pecuniary bene- 
factor of the Law School, and one of the largest pecuniary 
benefactors of the University. In this respect, he stands 
before Hollis, Alford, Boylston, Hersey, Bowdoin, Erving, 



14 



Eliot, Smith, M'Lean, Perkins, and Fisher. His contribu- 
tions have this additional peculiarity, that they were muni- 
ficently afforded, — from his daily earnings, — not after 
death, but during his own life ; so that he became, as it were, 
the executor of his own will. In justice to the dead, as an 
example to the living, and in conformity with established 
usage, the University should enroll his name among its 
founders, and inscribe it, in some fit manner, upon the 
School which he has helped to rear. 

Three different courses have occurred to the Committee. 
The edifice containing the library and lecture-rooms may be 
called after him, Story Hall. Or the branch of the Univer- 
sity devoted to law may be called the Story Law School ; 
as the other branch of the University devoted to science is 
called, in gratitude to a distinguished benefactor, Lawrence 
Scientific School. Or, still further, a new and permanent 
professorship in the Law School may be created, bearing his 
name. 

If the latter suggestion should find acceptance, the Com- 
mittee would recommend that the professorship be of Com- 
mercial Law and the Law of Nations. It is well known, that it 
was the earnest desire of Professor Story, often expressed, 
in view of the increasing means of the Law School, and of 
the necessity of meeting the increasing demands for educa- 
tion in the law, that professorships of both these branches 
should be established. He regarded that of commercial law 
as most needed. His own pre-eminence in this department 
is shown in his works, and especially in his numerous judicial 
opinions. And only a few days before his death, in con- 
versation Avith one of this Committee, hearing that it had 
been proposed by some of the merchants of Boston, on his 
resignation of the seat which he had held on the bench for 
thirty-four years, to cause his statue in marble to be erected, 
he said, " If the merchants of Boston wish to do me honor 
in any way on my leaving the bench, let it not be by a statue, 
but by founding in the Law School a professorship of com- 
mercial law." With these generous words he embraced in his 
vows at once his favorite law, and his favorite University. 



15 



The subject of commercial law is of great and growing 
practical importance. Every new tie of commerce, in the 
multiplying relations of mankind, gives new occasion for its 
application. Besides the general principles of the law of 
Contracts, it comprehends the law of Bailments, Agency, 
Partnership, Bills of Exchange and Promissory Notes, Ship- 
ping and Insurance ; — branches of inexpressible interest to 
the lawyer, the merchant, and, indeed, to every citizen. The 
main features of this law are common to all commercial 
nations : they are recognized with substantial uniformity, 
whether at Boston, London, or Calcutta ; at Hamburg, Mar- 
seilles, or Leghorn. In this respect, they may almost be 
regarded as a part of the privafe law of nations. They 
would be associated naturally with the Public Law of Na- 
tions ; embracing, of course, the Law of Admiralty, and 
that other branch which, it is hoped, will remain for ever, 
a dead letter, — the Law of Prize. 

The Committee believe that all who hear this statement 
will agree, that something ought to be done to commemorate 
the obHgation of the University to one of its most eminent 
professors and largest pecuniary benefactors. They have 
ventured to make suggestions with regard to the manner in 
which this may be accomplished, not with any pertinacious 
confidence in their own views, but simply as a mode of 
opening the subject, and bringing it to your best attention. 
In dwelling on the propriety of creating a new and perma- 
nent professorship, they do not wish to be understood as 
expressing a preference for this form of acknowledgment. 
It may well be a question, whether the services of Professor 
Story, — important in every respect, — shedding upon the 
Law School a lasting fame, and securing to it pecuniary 
competence, an extensive library, and a commodious hall, — 
can be commemorated with more appropriate academic 
honors, than by giving his name to that department of the 
University of which he has been the truest founder. The 
world, in advance of any formal action of the University, 
has already placed the Law School in the illumination of 



16 



his name. It is by the name of Story that this seat of legal 
education has become known wherever jurisprudence is 
cultivated as a science. By his name it has been crowned 
abroad. 

For the Committee, 

CHARLES SUMNER. 

To the Overseers of Harvard University. 



